A Guide to Polygraph Testing in the South African Workplace
Got some serious work issues that require polygraph testing? Business is tough and while it’s the goal of every business owner to run a thriving, profitable business, it’s no easy feat in this day and age. In a volatile economic climate such as ours, five out of seven new businesses fold within their very first year. While finances and lack of marketing certainly play a huge role, employees are the real culprits. Yes, the crippling effect of the incorrect employees can easily drive a company to its death.
If you’re an employer looking to screen your employees in a much more efficient way, or if you’ve been confronted with a loss such as misconduct, theft or fraudulent behaviour and are considering polygraph testing, make sure you have all the facts at hand before you commit to the process. You need to know if it is recognised by the CCMA, is it accurate, and is it enough to justify dismissal?
What is Polygraph Testing?
Although polygraph testing has been in existence for approximately 2000 years, it is a fairly new concept in South Africa, especially relating to workplace disputes. Similar to the criminal justice system, polygraph testing, also referred to as a ‘lie detector’ test, refers to a device that simultaneously measures and records selected physiological activities or electro-physiological activity. Capturing four types of psychological data: blood pressure, heart rate, respiration rate, and skin conductance (subcutaneous sweating), what this means is that the person being examined will either fear being caught lying, which means their body will react reflecting that fear, or their actions will reflect no fear, which will be captured by the polygraph test.
Can Employees Be Forced to Take a Polygraph Test?
There has been an enormous interest in South Africa regarding the use of polygraph testing in both pre-employment and misconduct screening – but is it legal and can employees be forced to take these tests? While it is not illegal to perform polygraph tests in the workplace, it is not recommended as the first course of action when there is suspected misconduct in a company. If you’re in the dark about polygraph testing – here’s some important facts to keep in mind:
- The test is voluntary;
- Employee rights must be explained before the test commences;
- Only questions discussed prior to the examination will be used;
- The employee has a right to have an interpreter, if necessary; and
- No abuse, discrimination or threats in whatever way is allowed.
Is Polygraph Testing Enough to Justify Dismissal in South Africa?
In 2009, The Labour Court was confronted with a dismissal based solely on polygraph test results. In Mustek Ltd v Tsabadi NO & Others, several laptops went missing from the premises and the employees were forced to a polygraph test. The six employees who failed the first polygraph test were retested, and the four who failed the test again were instantly dismissed. This suggests that at least two of the negative results were not reliable.
After examining the use of polygraphs in the work place, the court confirmed that the results of polygraph tests alone are not enough to justify an employee’s dismissal. Used on its own, polygraph testing is not a basis for a finding of guilt and does not justify dismissal. However, if there is other evidence of misconduct, polygraph testing can be regarded as an aggravating factor and can be used in support of the other evidence.
And there you have it! For more information about polygraph testing and specialised labour law services and rates, contact us at reception@www.allardyce.co.za or on 011 234 2125 today.
NB: This article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.
